Land alienation is focal point of SC’s Waqf law hearing

2. If any question arises as to whether any such property is a Government property, the State Government may, by notification, designate an officer above the rank of Collector who shall conduct an inquiry and determine whether such property is a Government property or not and submit his report to the State Government. In this case, such property shall not be treated as waqf property till the designated officer submits his report.

3. In case the designated officer determines the property to be a Government property, he shall make necessary corrections in revenue records and submit a report in this regard to the State Government.

4. The State Government shall, on receipt of the report of the designated officer, direct the Board to make appropriate corrections in the records.

The petitioners have contended that this section gives ‘unfettered’ powers to the government to declare any property as ‘government property’ and immediately that property ceases to be a waqf property.

Senior Advocate Kapil Sibal questioned the legal validity of Section 3(C) arguing that it alters revenue records without a defined procedure and violates principles of due process.

Sibal pointed out to the court that many states never completed the surveys required under the 1995 Waqf Act. According to Sibal, only two waqfs have been registered in Delhi and none in Jammu & Kashmir. Pointing out to this fact he said, “Whose fault is that? Certainly not the community’s”.

Referring to the Waqf Assets Management System of India (WAMSI) portal, Sibal argued that the failure of the State to conduct waqf surveys cannot be used to penalise the community now.

Government doesn’t have powers to unilaterally take over Waqf land

Solicitor General of India, Tushar Mehta clarified that Section 3 (C) is aimed at only making entry into the revenue records and the question of title will only be determined by the Court. He rejected the contention that the government could unilaterally take over the Waqf land.

Mehta said, “The only consequence is revenue records will be corrected... It will be open for affected parties to approach the waqf tribunal, final determination of title would be decided by tribunal or in appeal by the High Courts.”

From the argument presented by Mehta, it becomes clear that (1) It will be a paper entry (2) If the government wants ownership it will have to file a suit for the title (3) only the character of Waqf in the revenue records is suspended due to Section 3C (4) No property could be alienated unless courts decide so.

However, in a judgment delivered in November 2024 the apex court had ruled that though revenue entries do not confer title, they are admissible as evidence of possession.

The petitioners had also argued that Section 3C enabled the Government to act as a judge in its own cause. The basis of this argument is that it is the government-designated officer who will decide to whom the land belongs. Contending this argument Mehta gave the example of the Supreme Court judgment in Crawford Bayley vs Union of India upholding the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act 1971, which enabled the Government to appoint the Estate Officers to order eviction.

Can a scheduled tribe area become Waqf property?

Another section of the new Waqf Act that was argued upon in some detail during the last two days of the hearing was Section 3E which bars the declaration of any land in Scheduled or Tribal area as waqf.

Section 3E states: Notwithstanding anything contained in this Act or any other law for the time being in force, no land belonging to members of Scheduled Tribes under the provisions of the Fifth Schedule or the Sixth Schedule to the Constitution shall be declared or deemed to be waqf property.

This was considered an important insertion by the government.

Sibal has contended that the provision discriminated against members of the Scheduled Tribe (ST) community who practised Islam. He presented a list of states with a notable presence of Muslim ST populations to support his claim. According to him, the amendment was per se unconstitutional, as it effectively curtailed the fundamental rights of Muslim ST individuals under Article 25 by prohibiting the designation of any land as Waqf property.

Mehta had submitted that the provision effectively protected tribal land which was under “serious threat” due to the creation of Waqfs. He claimed that cultural minorities in Islam are “distinct” and do not follow all religious practices.

Last minute insertions

Sibal has claimed that Sections 3D and 3E were inserted into the Bill without any prior deliberation or discussion and they were not included in the Joint Parliamentary Committee’s draft and were introduced at the last minute—on the very day of the vote, 2 April.

Senior Advocate Huzefa Ahmadi argued that Section 3E takes away the right of Muslim tribal to dedicate property as Waqf and contested the government’s argument that 3E protects tribal land from being alienated.

It is important to note that there have been many constitutional and legal provisions in place to protect and safeguard the land rights of STs. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, The Panchayats (Extension to Scheduled Area) Act, 1996, and Constitutional provision under Schedule-V provide safeguards to the tribal community against violation of their land rights.